R v Kinchela

[2002] NSWSC 8

NEW SOUTH WALES SUPREME COURT

CITATION:     R v Kinchela [2002]  NSWSC 8

CURRENT JURISDICTION:      Common Law Division

FILE NUMBER(S):      71020/02

HEARING DATE{S):    23 January 2002

JUDGMENT DATE:      23/01/2002

PARTIES:
Regina
Shane Anthony Kinchela

JUDGMENT OF:        Sperling J     

LOWER COURT JURISDICTION:       Local Court

LOWER COURT FILE NUMBER(S):    

LOWER COURT JUDICIAL OFFICER:  

COUNSEL:

SOLICITORS:
Ms S. Harris for the Director of Public Prosecutions
Mr A. Djemal for the Applicant

CATCHWORDS:
Bails
application granted for purpose of obtaining treatment for alcohol dependency

ACTS CITED:

DECISION:
See paragraph 17 of the judgment

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Bails List

Sperling J

Wednesday, 23 January 2002

71020/02              Regina v Shane Anthony Kinchela

Judgment

1. His/Her Honour: I propose to grant bail in this case.  The circumstances of the matter are such, however, that it is appropriate for me to give reasons for doing so.

2. On the evidence before me, during the last five years or so, the applicant has been addicted to alcohol, habitually drinking to the point of becoming extremely drunk.

3. The evidence is that, when not affected by alcohol, the applicant's behaviour is unexceptionable. That is the evidence of his mother.  It is also the evidence of Mr J Sells, who has written a letter, which is before the Court, stating that the applicant has worked in Mr Sells' business for the past three years.  I would summarise Mr Sells' opinion of the applicant as being that the applicant's work performance has been exemplary.

4. The applicant's history includes the following:  In 1992 he was convicted of robbery with striking, although his unchallenged evidence before me is that he was involved at that time with some older individuals and his offence was based on the role of an accessory.  It may be noted that at that time the applicant would have been in his early teens.

5. More particularly, on 8 May 2001, the applicant was sentenced to 12 months imprisonment, the sentence being suspended, for assault, assaulting police and malicious damage.

6. On 20 October 2001, there was an extremely serious incident at Cootamundra when the applicant was abroad with a firearm.  He threatened three youths with it in the street, then a large number of persons at a hotel.  While there, he struck a patron in the head with the butt of the weapon causing a fracture and other injury. At the hotel, he also threatened police officers, who were called, with the weapon.  He was then seen in the street loading the weapon and subsequently threatened two further police officers.  When arrested soon after, he struck a police officer with a bottle.  The evidence before me is that, at the time, he was inebriated.

7. Following the suspended sentence on 8 May 2001, the applicant was seen by a parole officer monthly until that episode in October.  The applicant says that, although his alcohol problem was discussed with the parole officer, no recommendation was made for treatment, counselling, or for any kind of program to deal with that condition.  The applicant has given evidence of some attempts which he himself has made unsuccessfully to obtain suitable treatment in that regard.

8. The applicant has been in custody since he was apprehended in October 2001.  He says that during that time he has made numerous requests for entry into a drug and alcohol rehabilitation program within the prison system, but has had no response.  That is possibly because of his status in being on remand pending trial.

9. The applicant's evidence concerning what transpired with his parole officer between May and October 2001 and concerning his request for treatment since his arrest in October has not been challenged.  I have no reason to disbelieve him in those respects.

10. The applicant now faces committal proceedings and, assuming committal for trial, a trial for the offences with which he has been charged arising out of the episode on 20 October.  I am informed, however, that there are current negotiations which might result in an abbreviation of those proceedings.

11. In a case such as this, it has to be said that the individual must accept a high measure of personal responsibility for his conduct.  On the other hand, the community bears a heavy responsibility to provide treatment for a condition such as that from which the applicant suffers.

12. In that respect, it seems to me that the community has let this man down badly.  On the evidence before me and which I accept, no appropriate treatment or program has been offered through the parole service despite what occurred leading up to the suspended sentence in May 2001, and nothing has been done within the prison system since October 2001 in that regard.

13. There is much to be said for the argument that, if the parole service and the prison system default in providing the necessary treatment for such a condition, the person concerned has a strong claim for being at liberty in order to obtain such treatment, pending trial for what has to be recognised as a consequence of the condition.

14. Arrangements have been made for the applicant to be admitted to Benelong's Haven, where the applicant would be a live-in inmate for the duration of his treatment program there.  But for those arrangements, I would have had no hesitation but to refuse this application for bail, in view of the risk of repetition of similar behaviour were the applicant to be left at large in his present state.

15. There is the risk of the applicant absconding from Benelong's Haven, of turning to drink again, and of committing similar offences.  It seems to me, however, that the community has to bear that risk in view of the previous defaults to which I have referred.

16. The Crown has communicated to the Court a strong view on the part of the police that bail should be refused in this case.  I understand that submission only too well, in view of the fact that police officers were threatened and put at risk by the applicant's behaviour.  I would earnestly recommend to the police authorities that they put their case to the Probation and Parole Service and to the prison authorities, with a view to ensuring that appropriate treatment is provided at an appropriate time to persons such as this applicant, for the very purpose of avoiding incidents such as occurred on 20 October.

17. In relation to all outstanding matters and offences, I grant bail, subject to the following conditions:

    (1)           The applicant is to enter into an agreement to observe the following requirements as to his conduct while at liberty on bail:

(a)     He is to reside at Benelong's Haven, Kinchela Creek.

(b)     He is to undertake and complete a course of drug and alcohol rehabilitation with          Benelong's Haven and to give undertakings in             writing to obey any lawful command given by the person for the time being in charge of that institution and not to leave that institution until the rehabilitation course has been completed except for conferences          with his legal advisers or attending court.

(c)     The applicant is not to be released except into the custody of his mother, Cheryl Maree Kinchela, and is to proceed with her directly to Benelong's Haven.

(d)     The applicant is to appear at the Local Court, Cootamundra on 18 February 2002.

(e)     Cheryl Maree Kinchela, whom I find to be an acceptable person, is to enter into an agreement without security to forfeit the sum of $1,000 if the applicant fails to comply with his bail undertaking.

(f)     The applicant is to be of good behaviour.

(2)           Bail is to be automatically revoked in the event of any                breach of any one of these conditions and the applicant may thereupon be arrested by any police officer.

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LAST UPDATED:               23/01/2002